Just Desert

The punishment theory of just desert involves the rational and moral justification of penalties for criminals who are said to “deserve” the punishment they receive for their crimes. Such a theory is retributivist in form and calls for the exact punishment that an offender deserves—no more, no less. Retributivism looks at acts in a non-consequentialist or deontological way, that is, acts are considered right or wrong in themselves regardless of their consequences. If one commits a wrong act, then one should be punished [Page 971]for this offense. Such theories tend to take an agent-relative focus. For instance, “murder is wrong, therefore I should not commit murder.” The end, or teleological effect, of the action itself, whether the consequences are good or bad (act consequentialism) plays no part in judging an act. This transgression must be punished because it is wrong in itself. Punishment is imposed because the individual has committed a crime. The breaking of the law is sufficient condition for penalty. Punishment looks backward to the past act, not to any future good that might come of the imposition of a penalty. That a punishment may deter others from committing crimes or rehabilitate the offender should play no part in the act of inflicting penalties. The goal of punishing is then a rational justification for dealing with a criminal who commits a wrongful act. But this theory morally justifies punishment, because the criminal who breaks a law takes an unfair advantage of society through his crime. Most people abide by the law, so why should not all? One who commits a crime takes unfair advantage of others who uphold the law. The punishment restores the moral equilibrium of society by taking back, usually in an expressive manner, what has been taken away by the criminal act.

In his Metaphysics of Morals (1797), Immanuel Kant stated the classic eighteenth-century proposition of this theory:

When people behave culpably, with some satisfaction of their wrong, and an understanding of the responsibility of their actions, they take unfair advantage of others. They must then be punished, and the penalty must give satisfaction proportionate to the magnitude of their crime and equal to or similar to other punishments given for the same type of crime. As H. J. McCloskey states: “The criminal is one who has made himself unequal in the relevant sense. Hence he merits unequal treatment. In this case, unequal treatment amounts to deliberate infliction of evils—suffering or death.” (Honderich 1984: 24)

Such a theory does not take deterrence nor any other consequentialist argument into its strict reasoning. The criminal law puts constraints on individuals for the purpose of allowing all a certain sphere of non-interference. To interfere is to have a greater benefit at the cost of someone else. The wrongdoer, according to some theorists, claims falsely to being superior to the victim. In order to punish this offender, to correct this false claim, to maintain an equilibrium beneficial to a well-ordered society, the state must punish the offender in proportion to the suffering of the victim. In this way, the punishment sets straight the imbalance caused by the crime. Punishment is therefore justified by the merits of the past crime, and the offender receives a just desert, or penalty, for the crime.

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